### THE ATTORNEY GENERAL 0~ TEXAS

,/- 

### Ja~mary 27,1988 JlMMA- *-- -EmAL

Mr. Kenneth Ii.Ashworth Opinion No. 

### a-848 Commissioner Coordinating Board Re: Eligibility of Texas College andUniversity aliens holding E-l visas, system and those under 

### a NATO P. 0. Sax 12788 Status of Forces AgreeAustin, Texas 78711 ment topay resident tuition at state institutions of higher education; clarification of Attorney General Opinion JM-241 (1984) (RQ-1274)

UearMr. Ashworth:

You ask for a clarification of Attorney General Opinion JW-241 (1984) inthe light of certain developments inthe law subsequent to thedate that opinion was issued.

InAttorney General Opinion JW-241, we considered whether federal law required Texas to permit certain categories ofaliens present intheUnited States to adopt this state as their domicile forthepurposes of section 54.057 of the Texas Education Code. That lawprovides, in part, that

[a]nalien who is living in this country under avisa permitting permanent residence
orwho has filed with the proper federal immigration authorities a declaration of intention tobecome a citizen has the same privilege ofqualifying for resident status for fee purposes under this Act ashas a citizen of theUnited States. . . . Educ. Code 554.057.

We determined that the Supremacy Clause of theUnited States Constitution required Texas to allow aliens who are permitted by the Ccngress to adopt theUnited States as their domicile while they are inthis country tohave theor. Kenneth Ii.Ashworth -Page 2 (JM-848)

same privileges as citizens andpermanent residents of the Unites States despite the limitations insection 54.057 which restrict itsapplication either topersons with the status of permanent resident or to those awaiting naturalization. See aeneraJJy w v.MorenQ, 458U.S. 1 (1982).
Thismeans, of course, that certain aliens residing inTexas may qualify asresidents forpurposes of tuition at state universities. Such aliens are required to meet the standards of proof for establishing resident status required **of** all other claimants under the Education Code.
Attorney General Opinion a-241 determined that, among others, holders of **visas** in the E-l category 

### (certainemployees of foreign commercial firmsworking in theUnited States) and persons stationed inthis country by the armed forces of signatories to the Agreement between the Parties to theNorth Atlantic Treaty regarding the Status of their Forces, 4U.S.T. 1792, T.I.A.S. 2846 (theStatus of Forces Agreement), are entitled to require Texas to recognize this state as their domicile for the purposes of section 54.057 of the Education Code. Based on the rationale in Ipgll v. Ma, m, the opinion stated:

The Immigration and Nationality Act

establishes various categories of nonimmigrant 

### aliens. Congress expressly conditioned admission of aliens in some nonimmigrant categories onan intent not to abandon a foreign residence, a fact which precludes the establishment ofadomicile in theUnited States 

### forthose aliens while allowing the establishment of

### adomicile for certain other nonimmigrant categories.
Attorney General Opinion m-241 (1984).
Subsequent to the issuance of 

### our opinion, the General Counsel of the Immigration and Naturalization Service, ina letter to the

### TexasCollege and University System, stated that itwas the position ofhis office that aliens holding visas in the E-l category were not permitted by Congress to establish a domicile in the United States: --.

[Plursuant to INS regulations, traders and investors . . .are admitted for 

### a period not to exceed one,year. -8 C.F.R. 5

p.4106,

rMr. Kenneth Ii.Ashworth -Page 3 (JM-S~&)

214.2 (e). In fact, the legislative history **of** the Immigration and Nationality Act of 1952mentions the temporary nature of the

. . .category. . . . It seems therefore, that Congress has not permitted Ealiens to adopt the United States as their domicile while they arehere.
Letter, Maurice Inman, General Counsel, United States Immigration and Naturalization Service, to Mack Adams, Assistant Commissioner forStudent Services, Texas College andUniversity **System,** October 18, 1985.

We defer to the expert interpretation of the Immigration and Nationality **Act** developed by the chief legal officer of the agency charged with implementing the law. See e.ac, J&.itedStates v. 525Ce 342 F.2d 759 (1965). Accordingly, JM-241 is modified i;sofar as it states that the holders ofvisas inthe E-l category I&& bepermitted toadopt Texas as their domicile for the purposes of applying section 54.057 of the Education Code. Additionally, with regard to thepersons associated with the armed forces of signatories to the Status of Forces Agreement, S~~QZU, the General Counsel of the Immigration Service has 

### issued anopinion concerning the ability of such alien military personnel and their dependents to acquire adomicile here. Inpertinent part the opinion says:

Youhave requested our opinion as to whether Congress allows [persons subject to the Status of Forces Agreement] to enter the United States as nonimmigrant aliens on terms permitting the establishment of domicile. This office has reviewed the pertinent immigration statutes aswell as the NATO Status of Forces Agreement and is unable to conclude that any of these laws or agreements clearly conveys the right to establish domicile in the United States under federal immigration law.

. . . . Personnel entering the United States under the NATO Status of Farces Agreement are accorded anonimmigrant classification under that Agreement, and not under the Immigration and Nationality Act. Article

p.4107Mr. Kenneth H.Ashworth - Page 4 (JM-848)

III states that NATO personnel 'shallnot be considered as acquiring any right to permanent residence or domicile in the territories of the receiving State.' NATO Status of **Forces** Agreement, T.I.A.S. **2846** (1951).
Letter, Raurice Inman, General Counsel, United States Immigration and Naturalization Service, to R. G. Grosskraumbach, Legal Affairs Section, Federal Republic of Germany, Armed Forces Administrative Agency, August 20, 1985.
Although the Immigration Service document setting forth this view is labeled asonly representing the view of the General Counsel of the Service, webelieve that it should be accorded great weight. United States v. 525 Comaanvf NuRra- Therefore, to the extent that it permits aliens present in Texas to acquire domicile for the purpose of section 54.057 ofthe Education Code solelv because of their status under the Status of Forces Agreement, Attorney General Opinion JR-241 is hereby modified.

Under the Supremacy Clause of the United

States Constitution, aliens who are permitted by Congress to adopt the United States as their domicile while they are in this country must be allowed the same privilege as citizens and permanent residents of theUnited States to qualify forTexas residency for the purposes of tuition at state universities, despite the limitation in section 54.057 of the Texas Education Code. Holders of visas in the E-l category, and aliens covered by the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces, 4U.S.T. 1792, T.I.A.S. **2046,** are notpermitted byCongress to establish domicile intheUnited States and therefore need notbe permitted to establish residency status forthepurposes of section 57.057 of the Texas Education Code. Attorney General Opinion JR-241, to the extent that it is inconsistent with this opinion, ismodified. I

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p.4108P Mr. Kenneth H.Ashworth -Page 5 

### (JIG848)

Very truly yo , 

# LJIlLJk

A JIl4 MATTOX Attorney General ofTexas

XARYKBLLBR First Assistant Attorney General

LouMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Don Bustion Assistant Attorney General

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